Westfield v. Marble

Holcomb, J. — Respondent made an oral agreement to procure a purchaser for corporate stock belonging to appellants. On March 10, 1917, respondent procured one Perry who made a written contract with appellants to exchange a certain amount of real estate for the corporate stock. There is no dispute as to the amount of $1,000 commission to be paid. Respondent claimed and recovered in the trial court on the theory that the commission was due when he got a buyer. Appellants concede that respondent had procured a buyer, but claim that $200 of the commission was to be paid when all the deeds from Perry to appellants were delivered, and the balance of $800 was to be paid when respondent either sold or secured a loan on some of the property to be conveyed by Perry to appellants. Perry having failed to deliver deeds as per centract, suit was begun by appellants against him for specific performance. It is admitted that $50 of the commission [214] has been paid to the respondent. The court made findings and entered judgment in favor of respondent for $950. The controlling question is whether the evidence preponderates in favor of respondent’s or appellants’ version of the contract. The evidence is somewhat conflicting, but the question of the weight of the evidence and credibility of the witnesses is within the province of the trial court, who is in a better position to determine it than we are, unless we can say from the typewritten pages that it preponderates the other way, which here we cannot. The judgment is in accord with the findings, and it will be affirmed. Main, C. J., Mount, and Mackintosh, JJ., concur.